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Justice Questions, December 2008
Nick challenges the Justice Secretary on the offence of Misconduct in Public Office
Nick Herbert (Arundel and South Downs) (Con): With respect, the Justice Secretary is simply not answering my hon. Friends' questions. The 1988 White Paper on reforming the Official Secrets Act stated:
"The objective of Official Secrets legislation is not to enforce Crown Service discipline-that is not a matter for the criminal law-but to protect information that in the public interest should not be disclosed."
Does the Justice Secretary agree that the purpose of the reform, which restricted the criminal law to information that is damaging to national security, will be completely defeated if there are prosecutions under a common law offence for matters that Parliament clearly intended should be treated as disciplinary issues?
The Secretary of State for Justice and Lord Chancellor (Mr. Jack Straw): When Lord Hurd, the then Home Secretary, originally came to the House to make his proposals for changes in the Official Secrets Act in 1988, he did so to deal with a particular mischief in the operation of the Act. He did not, as I recall, come to the House to propose a root-and-branch reform of all areas of the law relating to conduct in public office. Moreover, he had no proposals at that stage to reform the common law offence, which, as we have heard, had existed since the 18th century, of misconduct in a public office. Further, when the Committee on Standards in Public Life reported in the middle of 1997 and when I responded to the then Joint Committee in 1998, I do not recall anybody from the Opposition ever suggesting that the offence should be excised altogether from the criminal law. The only issue was whether it should be partially replaced by a statutory offence. That was turned down by the hon. and learned Member for Harborough.
Nick Herbert: When Lord Hurd, the then Home Secretary, came to the House and presented the Bill to which the right hon. Gentleman has referred, he said:
"We ask the House today to agree in principle that the criminal law should be prised away from the great bulk of official information."-[ Official Report, 21 December 1988; Vol. 144, c. 460.]
The right hon. Gentleman was simply wrong in his recollection of what Lord Hurd said. The amended Official Secrets Act specifically requires the prosecution to prove that any disclosure of Government information would be damaging to national security. Leaks that reveal Home Office incompetence, for instance, may be damaging to the reputation of this Government, but they do not damage national security. Is it not typical of Ministers under this Government to confuse their narrow party interests with the interests of the country? Will the Justice Secretary now answer this straightforward question: should the common law offence of misconduct in a public office be deployed for prosecutions of recipients of Government information where national security is not at stake? Yes or no?
Mr. Straw: Lord Hurd makes my point, because he spoke about removing the criminal law from "the great bulk" of what amounts to leaking, and so it has been, and without question by a very long way. However, he did not talk about removing the application of criminal law absolutely. On the hon. Gentleman's second question, what he is asking me to do, which is entirely inappropriate for a Minister responsible for the judiciary, is to intervene in a continuing criminal investigation. [ Interruption. ] That is the invitation that he is making, but I am afraid that I shall decline it. Were the unlikely situation ever to arise of his being in my place, I hope that he would decline it in the same way.
As for the hon. and learned Member for Harborough, I am surprised at his wittering from a sedentary position. It is no good his complaining: he put his name to this report from the Joint Committee on the Draft Corruption Bill in 2003, which specifically said:
"We have...considered adding separate specific offences to the Bill such as...making misconduct in public office a statutory offence (with a wider definition of public office)."
The Committee then said that it did not think that the Bill was "the appropriate vehicle". He considered the proposal, thought about it and then rejected it. That happens to be our position, too. We have not changed our position; the Opposition have.
9 December 2008
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